Presidential Petition II: The lies and illegalities

Comment/Analysis

 ChebukatiOn 30th October, the day he declared President Uhuru Kenyatta the winner of Kenya’s repeat presidential election, IEBC Chairman Wafula bemoaned being turned into a punching bag by Kenyans[1].

"It is unfortunate that some have found a punching bag in me,” he said of his tormentors.

If the IEBC Chairman finds some Kenyans to be uncharitable in their appraisal of his stint at the helm of IEBC, he will find the gaze of posterity to even more unforgiving. To be clear, history will not be kind to Wafula Chebukati. In fact, posterity will wonder how a man so patently unqualified was ever considered let alone put in charge of a commission undertaking such a sacred and momentous duty.

These words may sound harsh but consider for a moment that Chebukati has done precious little to demonstrate that he takes the duty of shepherding IEBC seriously and not just as a career stepping stone. There are in fact grounds to question whether Chebukati fully buys into the concept of democracy itself. This is, after all, a man who even in his finest hour, while announcing the results of the August 8th elections, mangled a famous democracy-maligning quote and misattributed it to Abraham Lincoln[2]. The quote “the best argument against Democracy is a five-minute conversation with the average voter” is often attributed to Winston Churchill but historians dispute this because Churchill “had a more positive attitude towards the average voter[3].” Chebukati, if his own words are to be believed, appears to hold a different opinion about voters.

And the question here really is whether to take Mr Wafula Chebukati at his word because the IEBC Chairman appears to have a slippery relationship with the truth. Lately, Chebukati has even taken to lying under oath. In the election petition filed by human rights campaigners Njonjo Mue and Khalef Khalifa at the Supreme Court, the two allege that IEBC unilaterally added Shakhalaga Khwa Jirongo to the ballot even before his name had been gazetted.

“On 18 October 2017, once again on its own motion the 2nd Respondent decides to add the name of Shakhalaga Khwa Jirongo who had hitherto been excluded as a candidate to the list of candidates to participate in the 26 October 2017 Election. The decision to include Shakhalaga Khwa Jirongo was disclosed by Commissioner Abdi Guliye in an interview he conducted while on a trip to Dubai on 18 October 2017 and published in the print media on 23 October 2017. Commissioner Abdi Guliye admitted that Shakhalaga Khwa Jirongo had not been gazetted.”

In his response to the petition, Chebukati falsely claims that IEBC only added Jirongo’s name to the ballot paper to be used in the repeat election only after he had been cleared to vie by a local court:

“Owing to judicial intervention suspending a declaration of bankruptcy against Shakhalaga Khwa ‘lirongo, the Commission on 24th October 2017, through Gazette Notice No. 10562 of 2017 included Mr. Jirongo’s name on the ballot thereby publishing the names of all the candidates who participated in the original invalidated presidential election of 8th August 2017.”

Chebukati’s barefaced lie is easy to disprove with evidence from the IEBC’s own Twitter feed. On 19th October, the account posted this tweet confirming that the commission had finished printing ballot papers for the repeat poll.

[Tweet: https://twitter.com/IEBCKenya/status/921004006750785537]

Therefore, unless IEBC invented a time machine or somehow collapsed the fabric of time and space itself, it would have been impossible for Jirongo’s name to be on the ballot paper. The only plausible explanation for any of this is that IEBC once again decided to act outside the law and add Jirongo’s name to the ballot paper before he was gazetted as a candidate in the election. This episode is proof not just of an illegality committed by IEBC but of Chebukati’s shameless willingness to lie to cover it up.

As Julie Soweto, counsel for Njonjo Mue and Khalef Khalifa said on Wednesday (15th November) in her oral submissions before the Supreme Court, the IEBC Chairman is turning out to be quite an inveterate liar:

"There is dishonesty where when it suits him (Chebukati) he says one thing and with another breath he says something different," she said.

Another example of Chebukati’s readiness to lie to over up for the dysfunction within IEBC is in his revisionist take on what happened after former IEBC commissioner Roselyne AKombe resigned[4]. Chebukati, in his response to the Njonjo/Khalef petition, claims he never “cast doubt on the 2nd Respondent’s preparedness and ability to deliver a valid fresh presidential election.” This contradicts Chebukati’s own words on 18th October: “All my motions have been defeated by a majority of the commissioners. Under such conditions, it is difficult to guarantee a free, fair and credible election."

https://www.youtube.com/watch?v=avnJ8py-uEg

As suggested in the Njonjo/Khalef petition, IEBC committed several illegalities and irregularities in the 26th October poll. Among them are:

  1. Failure to conduct nominations
  2. Ungazetted and undesignated returning and presiding officers and/or illegally appointed returning and presiding officers.
  3. Ballot Papers with candidates whose names should not have appeared
  4. Arbitrary relocation of polling stations on Election Day without notice
  5. Failure to conduct a legitimate, credible and transparent process

In other words, as Soweto so aptly put it in her oral submissions, “the IEBC decided what law to follow and what law to ignore,” while conducting the the repeat poll. The reason for this slapstick show , according to Soweto is “IEBC appears to be under the thumb of the Executive, currently controlled by the Third Respondent (President Uhuru Kenyatta). It’s hard to disagree with this conclusion. The IEBC has thrown the constitution out the window and contorted itself to suit the whims of one candidate. The state of Kenya’s democracy is all the poorer for it.

 

[1] https://www.the-star.co.ke/news/2017/10/30/iebc-cant-please-everyone-election-was-proper-punching-bag-chebukati_c1661394

[2] https://twitter.com/Askumo254/status/896070659050045440

[3] https://www.winstonchurchill.org/publications/finest-hour/finest-hour-141/history-detectives-red-herrings-famous-words-churchill-never-said/

[4] https://citizentv.co.ke/news/roselyn-akombe-resigns-from-iebc-178912/

DISCLAIMER: The issues discussed here are of the writer and are not in any way the position of ICJ Kenya.